Two feminists are warning the Senate's legal and constitutional affairs committee that passing the federal transgender rights bill could threaten the existence of exclusively "female-born" women's spaces, like rape crisis centres, a controversial argument that has ignited a debate over who should call themselves a woman.

"We are worried that this well-intentioned legislation will be used to undermine the rights of women and the crucial work of women's groups," Hilla Kerner, a collective member of the Vancouver Rape Relief and Women's Shelter, told the Red Chamber committee studying Bill C-16.

"What we are saying is: If you were born a female, you are doomed. You are doomed in our society to be second-class. You do not have the privilege of growing as a male and have a choice to choose to be a woman. Surely, you cannot say these are the same thing."

Bill C-16 would update the Canadian Humans Rights Act and the Criminal Code to include the terms "gender identity" and "gender expression." The House of Commons voted overwhelmingly in favour of these protections for the trans community, and sent the bill to the Senate last November.

Marni Panas

Marni Panas of Edmonton testified before a Senate committee in Ottawa Thursday. Panas said she "may have been assigned male at birth ... but I was born a woman." (Submitted by Marni Panas)

The idea that a transgender person "chooses" their identity is highly contentious. Groundbreaking research compiled by Greta Bauer, a professor of epidemiology and biostatistics at Western University, found 59 per cent of trans people knew their gender identity did not match their body before the age of 10, and 80 per cent knew this by the age of 14.

Marni Panas, a prominent trans activist from Edmonton who also testified at the Senate committee, told CBC News transgender women are often accused of "pretending."

"That's the underlying bias that really perpetuates this debate, that transgender women aren't truly women. That fact is I'm real," she said. "Let me assure you, somebody doesn't come out as a transgender woman for privilege. It comes at a great cost. I've lost my parents. I'm going through a divorce.

"I may have been assigned male at birth, and I was born with a penis, but I was born a woman."

Panas, 45, said transgender people often cannot live their true lives until they've gotten over the fear of how society will react to their transition. "You push that down. You have the internalized transphobia. But at the end of the day I didn't choose this life, it chose me."

'Female-born women'

Kerner's organization blocked a post-operative trans woman, Kimberly Nixon, from volunteering as a front-line rape counsellor because they said she did not have adequate "life experience" to relate to women fleeing violence perpetrated by men, an argument Kerner repeated at committee.

"Female-born women and people who were born male and self-identify as women have different life experiences. I don't know what it means to 'feel like a woman' — I know what it is to be a girl and to be a woman, and the experiences and the feelings I have because I am a woman," Kerner said.

"We know the embarrassment of having our clothes stained with blood from our period, the anxiety of facing an unwanted pregnancy and the fear of being raped, and we know the comfort of grouping with other women."

'Women are still an oppressed class of people in this country and in this world, and that's solely due to biology.' Meghan Murphy

Kerner acknowledged that while the legislation might not have a direct impact on the day-to-day operations of her shelter — it does not fall under federal jurisdiction, and it is already subject to provisions of the B.C. Human Rights Code — she said the bill sends the wrong message.

Kerner said because her organization does not house trans women in its shelter they have been the subject of a "witch hunt" by some activists.

"The BC Federation of Labour just instructed all their affiliated unions to boycott [us] and we're the oldest rape crisis centre in Canada. And that's the danger of the legislation: it is not explicitly expressing the rights of women to organize."

Devon MacFarlane, the director of Rainbow Health Ontario, an organization that fights for better health-care outcomes for the LGBT community, batted away those assertions Thursday during his testimony.

"I don't think this erodes women's rights. Trans women are women," he said. "Transition shelters and houses have been working with trans women for many, many years, and it's something that, aside from the Nixon case, hasn't come forward in law as a concern."

(After a 12-year legal battle, the B.C. Court of Appeal ultimately ruled in the Nixon case that Vancouver Rape Relief was entitled to maintain its "women-only" policy.)

'Vague' terms

If passed, Bill C-16 would make it illegal to discriminate on the basis of gender identity or expression, and amends the Criminal Code to extend hate speech laws to add protections for trans people.

Critically, the bill also amends the sentencing principles section of the code so that a person's gender identity or expression can be considered an aggravating circumstance by a judge during sentencing.

Some feminists find these developments troubling because Justice Minister Jody Wilson-Raybould has been reluctant to define what they call "vague" terms.

Jody Wilson-Raybould

Justice Minister Jody Wilson-Raybould has said the government is working to update its gender identity policies across federal departments. (Adrian Wyld/Canadian Press)

"This language is a big problem because it treats gender as a personal choice. It treats gender as though it's the clothes that I wear or my makeup or my behaviour or the way we sit," Meghan Murphy, a writer and the founder of the website Feminist Current, told senators.

Murphy, and some other feminists, have argued that gender is a social construct. A girl may be socialized to wear pink, have an interest in fashion and wear high heels, but those interests are not inherent, she said.

"Women are still an oppressed class of people in this country and in this world, and that's solely due to biology."

The Senate is considering whether or not to pass a transgender rights bill6:36